Jurisdiction Commons^™

Unraveling The Mystery Of Wilko V. Swan: American Arbitration Vacatur Law And The Accidental Demise Of Party Autonomy , James M. Gaitis

Pepperdine Dispute Resolution Law Journal

This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently …

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric Chafetz

Pepperdine Dispute Resolution Law Journal

This article will first discuss the legislative history of the NY Convention in general and the history of its vacatur provisions in particular. Second, it will summarize certain federal court decisions that address the Expansion Issues and reach the Consensus. Third, it will argue that the Expansion Issues were resolved incorrectly, because the courts addressing them do not recognize how the operative/material language in section 207 of Ch. 2 of the FAA and section 9 of Ch. 129 of the FAA has a virtually identical meaning, and therefore should have been construed and applied in the same manner. Fourth, this …

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Sealand, Havenco, And The Rule Of Law, James Grimmelmann

Faculty Scholarship

In 2000, a group of American entrepreneurs moved to a former World War II anti-aircraft platform in the North Sea, seven miles off the British coast, and launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo's founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a "data haven" for unpopular speech, safely beyond the reach of any other …

You Can't Go Holmes Again, Lumen N. Mulligan

Faculty Works

Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer …

Can Equitable Estoppel Be Used As An Effective Way For A Legal Parent To Obtain Child Support For The Children Of A Separated Same-Sex Couple?, Josh Smolow

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Region Codes And The Territorial Mess, Peter K. Yu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

Comity Of Errors: The Overemphasis Of Plaintiff Citizenship In Foreign Sovereign Immunities Act "Takings Exception" Jurisprudence, Todd Grabarsky

Cardozo Law Review

No abstract provided.

A Realist Defense Of The Alien Tort Statute, Robert Knowles

Law Faculty Publications

This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …

Standing On A Spectrum: Third Party Standing In The United States, Canada, And Australia, Gwendolyn Mckee

Barry Law Review

This article examines third party standing cases in the United States, Canada, and Australia. It demonstrates that third party standing can only be understood with reference to the role of modern courts in broad-based, constitutional style rights protection. This type of protection has been the main factor driving courts to create exceptions to the traditional standing requirements. It is only once these exceptions have been established that a court begins to consider allowing third party standing in cases that do not involve rights. The effects of this theory can be seen in the three countries examined in this article.

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

Faculty Works

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

Untangling The Twists Of Habeas Corpus, Larry Yackle

Faculty Scholarship

Take it from me. The one job you don't want is sorting out federal habeas corpus. By all accounts, existing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explanations of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases-a way to fix what so desperately needs fixing. This is a good book, a valuable book. It is informative, essentially accurate in …

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

Foreign Fishing Piracy Vs. Somalia Piracy – Does Wrong Equal Wrong?, Leticia M. Diaz, Barry Hart Dubner

Barry Law Review

This article is a sequel to the authors' last article, On the Evolution of the Law of International Sea Piracy, published in December 2009. That article attempted to illustrate the enormous problem of sea piracy off of Somalia. This article was inspired by the authors' attendance and participation at a two-day conference sponsored by the Harvard Kennedy School’s Belfer Center for Science and International Affairs. After the conference the authors were inspired to write this article, setting forth a view of why Somali piracy started and some of the problems created by these illegal acts.

Everyone Knows Medellin; Has Anyone Heard Of O'Brien? Reconciling The United States And The International Community By Amending The Vccr, 43 J. Marshall L. Rev. 817 (2010), Steven M. Novak

UIC Law Review

No abstract provided.

“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Barry Law Review

This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2(a)(10) that could make …

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …

Commerce Flaws: "Taking Exception" With Garb V. Poland'S Misinterpretation Of The Commercial Activity And Takings Exceptions Of The Fsia, Joshua A. Kirstein

Cardozo Journal of International and Comparative Law

The Second Circuit's application of the Foreign Sovereign Immunities Act (FSIA) in the Garb case was flawed, as it incorrectly used the "core functions" test instead of the "legal characteristics" test. This led to the improper granting of sovereign immunity to Poland, denying justice to the plaintiffs in a Holocaust-era property dispute. The decision undermines the FSIA's intent and sets a concerning precedent.

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.

On The Evolution Of The Law Of International Sea Piracy: How Property Trumped Human Rights, The Environment And The Sovereign Rights Of States In The Areas Of The Creation And Enforcement Of Jurisdiction, Leticia M. Diaz, Barry Hart Dubner

Barry Law Review

This article examines the statistics concerning piratical incidents occurring in the year 2008 and their impact on the world economy. This article also reviews the total scope of sea piracy worldwide with regard to the number and type of incidents thereof, because Somalia is not the only place in the world where sea piracy occurs. Finally, this article analyzes the history of prescribing and enforcing a jurisdiction regarding the international law of sea piracy.

Multijurisdictional Adr Practice: Lessons For Litigators, Kristen M. Blankley, Emily E. Root, John Minter

Cardozo Journal of Conflict Resolution

This article attempts to give an overview of the problem facing litigators in their increasingly global practice, as well as the steps that litigators can take to act in compliance with legal and ethical guidelines. Accordingly, this article is divided into two broad areas. First, this article will discuss what activities constitute the practice of law and which jurisdiction's law should govern, focusing on whether ADR practices constitute the practice of law. Second, if the litigator is engaged in the practice of law, this article considers what actions the litigator should take in order to comply with the applicable ethical …

Jurisdiction's Noble Lie, Frederic M. Bloom

Publications

This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would.

To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction's foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

Framing Concurrent Jurisdiction Issues In The Self-Determination Era: Accepting The First Circuit's Analysis But Rejecting Its Application To Preserve Tribal Sovereignty, Nathaniel T. Haskins

American Indian Law Review

No abstract provided.